[EL] Refreshing the Evenwel question about state practice: What about Nebraska?

[Marty Lederman]

As I wrote, I don't believe that the Maine and New York provisions
contemplate excluding aliens *from the districting counts*.  Nebraska's
does appear to do so, however.

When you write that "Nebraska no longer excludes aliens," Michael, can you
please offer more details?:  Was there an amendment to its constitution or
laws after *Reynolds*?  A deliberate decision to change practice
notwithstanding its constitutional provision?  Something else?

On Wed, Sep 23, 2015 at 10:52 AM, Li, Michael <lim at mercury.law.nyu.edu>
wrote:

> New York does not , in fact, exclude aliens. In Article III, sec. 5 of the
> New York Constitution, it says “the term ‘inhabitants, excluding aliens’
> shall mean the whole number of persons.”  (A lovely amendment in the best
> of NY fashion – just define the words to mean something else)
>
>
>
> Nebraska no longer excludes aliens, and my understanding is neither does
> Maine. The data just isn’t available.
>
>
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Marty
> Lederman
> *Sent:* Wednesday, September 23, 2015 10:41 AM
> *To:* Rick Hasen
> *Cc:* law-election at UCI.edu
> *Subject:* [EL] Refreshing the Evenwel question about state practice:
> What about Nebraska?
>
>
>
> I'm circling back to this question that I asked a few weeks ago (see
> below).  Several listmembers sent me helpful information in response to my
> earlier query, all of which appeared to confirm the standard narrative,
> namely:
>
>
>
> -- All 50 states do -- and have since *Wesberry* -- use *total population*
> for drawing districts for the federal House of Representatives.
>
>
>
> -- All 50 states also use *total pop* for districting of state
> legislative seats *except *that Hawaii and Kansas both attempt to exclude *nonresident
> military personnel and university students* (by asking the military
> installations and universities to tell central authorities their number of
> nonresidents)--most of whom are presumably counted in the jurisdiction
> where they *are* residents.
>
>
>
> I assumed these were the basic facts.  But then Texas included this
> striking footnote in its merits brief last week (a brief that is very
> provocative for other reasons, btw), invoking the laws of eight additional
> states:
>
>
>
> As the appendix to this brief demonstrates, a clear majority of States
> rely on total population in apportioning state legislative districts. Only
> a small minority of States - California, Delaware, Hawaii, Kansas, Maine,
> Maryland, Nebraska, New Hampshire, New York, and Washington - have
> constitutional or statutory provisions that exclude particular groups from
> the apportionment base. These provisions variously authorize the exclusion
> of *aliens*, nonpermanent residents, nonresident military personnel, and
> inmates who were not state residents prior to incarceration.
>
>
>
> Of these, Maine, New York and, especially, Nebraska are (potentially) the
> most interesting, because they have constitutional provisions dealing with
> aliens.  I'll discuss them below.  As for the other states, the Texas
> appendix reveals the following:
>
>
>
> *California, Delaware, Maryland, New York and Washington *have code or
> constitutional provisions concerning *nonresident incarcerated persons:*
>
>
>
> A provision of the *California *election code (Cal. Elec. Code § 21003)
> provides:
>
>
>
> [T]he Legislature hereby requests the Citizens Redistricting Commission to
> deem each incarcerated person as residing at his or her last known place of
> residence, rather than at the institution of his or her incarceration, and
> to utilize the information furnished to it pursuant to subdivision (a) in
> carrying out its redistricting responsibilities under Article XXI of the
> California Constitution. The Legislature also requests the commission to …
> (2) Deem an inmate in state custody in a facility within California for
> whom the last known place of residence is either outside California or
> cannot be determined, or an inmate in federal custody in a facility within
> California, to reside at an unknown geographical location in the state and
> exclude the inmate from the population count for any district, ward, or
> precinct.
>
>
>
> A provision of the *Delaware *code (Del. Code Ann. tit. 29, § 804A)
> provides:
>
>
>
> The General Assembly, in determining the reapportionment and redistricting
> for the State, applying the criteria set forth in § 804 of this title, and
> using the official reporting of the federal decennial census as set forth
> in § 805 of this title, shall not count as part of the population in a
> given district boundary any incarcerated individual who: (1) Was
> incarcerated in a state or federal correctional facility, as determined by
> the decennial census; and (2) Was not a resident of the State before the
> person's incarceration.
>
>
>
> A provision of the *Maryland *code (Md. Code Ann., State Gov't § 2-2A-01)
> provides:
>
>
>
> The population count used after each decennial census for the purpose of
> creating the legislative districting plan for the General Assembly: (1) may
> not include individuals who: (i) were incarcerated in State or federal
> correctional facilities, as determined by the decennial census; and (ii)
> were not residents of the State before their incarceration; and (2) shall
> count individuals incarcerated in the State or federal correctional
> facilities, as determined by the decennial census, at their last known
> residence before incarceration if the individuals were residents of the
> State.
>
>
>
> A provision of the *New York *code (N.Y. Elec. Law § 83-m) provides that:
>
>
>
> Until such time as the United States bureau of the census shall implement
> a policy of reporting each such incarcerated person at such person's
> residential address prior to incarceration, the task force shall use such
> data to develop a database in which all incarcerated persons shall be,
> where possible, allocated for redistricting purposes, such that each
> geographic unit reflects incarcerated populations at their respective
> residential addresses prior to incarceration rather than at the addresses
> of such correctional facilities. For all incarcerated persons whose
> residential address prior to incarceration was outside of the state, or for
> whom the task force cannot identify their prior residential address, and
> for all persons confined in a federal correctional facility on census day,
> the task force shall consider those persons to have been counted at an
> address unknown and persons at such unknown address shall not be included
> in such data set created pursuant to this paragraph.
>
>
>
> A provision of the *Washington *Constitution (art. II, § 43(5)) similarly
> states that "[e]ach district shall contain a population, excluding
> nonresident military personnel, as nearly equal as practicable to the
> population of any other district."
>
>
>
> A bit more broadly -- but still focused on *nonresidents*--the *New
> Hampshire* Constitution provides (N.H. Const. pt. 2, art. 9-a) that for
> districting of its State House seats, "[t]he general court shall have the
> power to provide by statute for making suitable adjustments to the general
> census of the inhabitants of the state taken by the authority of the United
> States or of this state on account of *non-residents temporarily residing
> in this state*."
>
>
>
> I don't know if the N.H. legislature has ever done what its constitution
> allows, but in 1971 the N.H. Supreme Court Justices issued an advisory
> opinion to the N.H. House concluding that, per *Burns*, the adjustment of
> federal census figures, for purposes of reapportionment, by exclusion of
> nonresidents who were *military personnel* stationed at base within the
> state or *students attending a collage or university* within the state
> would be constitutionally permissible, *assuming that military personnel
> and students who had in fact become bona fide residents would not be
> excluded on that basis *(but further held that adjustment of federal
> census figures by increasing or decreasing such figures to reflect the
> change estimated by the office of planning to have taken place in
> particular towns or wards from the date of the census to the date of such
> reapportionment or districting would be violative of the state
> constitutional requirement that apportionment be based upon a general
> census).
>
>
>
> * * *
>
> That leaves constitutional provisions from* Maine, New York and Nebraska.*
>
>
>
> As I read them (I'm not sure if this is right), the Maine and New York
> constitutional provisions each provide for the exclusion of "aliens" or
> "foreigners not naturalized" in *establishing the mean number of
> residents for districting*, but do not require that aliens be excluded
> when counting the total population in each district.
>
>
>
> The *Maine Constitution *(art. IV, pt. 1, § 2) provides that:
>
>
>
> The number of Representatives shall be divided into the number of
> inhabitants of the State *exclusive of foreigners not naturalized*
> according to the latest Federal Decennial Census or a State Census
> previously ordered by the Legislature to coincide with the Federal
> Decennial Census, *to determine a mean population figure* for each
> Representative District.
>
>
>
> (Art. IV, pt. 2 of the Maine Constitution then provides that Senate
> districting shall use the same “method” as House districting.)
>
>
>
> To similar effect, the *New York Constitution *(art. III, § 5) provides
> that:
>
>
>
> The quotient obtained by dividing the whole number of inhabitants of the
> state, *excluding aliens*, by the number of members of assembly, shall be
> the *ratio* for apportionment.
>
>
>
> (The next provision (art. III, § 5-a) then states that "[f]or the purpose
> of apportioning senate and assembly districts pursuant to the foregoing
> provisions of this article, the term “inhabitants, excluding aliens” shall
> mean the whole number of persons.")
>
>
>
> To similar effect for the New York Senate, the state Constitution provides
> (art. III, § 4(d)) that:
>
>
>
> The ratio for apportioning senators shall always be obtained by dividing
> the number of inhabitants, *excluding aliens*, by fifty.
>
>
>
> Yet when it comes to the actual apportionment for redistricting, the New
> York Constitution and laws appear to prescribe use of *total population*:
>
>
>
> To the extent practicable, districts shall contain as nearly as may be an
> equal number of *inhabitants*. (N.Y. Const. art. III, § 4(c)(2).)
>
>
>
> The assembly shall consist of one hundred fifty members chosen from the
> districts described within and apportioned among the counties on the basis
> of the number of *inhabitants* of the state based on the Federal Census
> of two thousand ten ….  (N.Y. State Law § 120.)
>
>
>
> The senate shall consist of sixty-three members chosen from the districts
> described within and apportioned among the counties on the basis of the
> number of *inhabitants* of the state based on the Federal Census of two
> thousand ten, as adjusted pursuant to the provisions of part XX of chapter
> fifty-seven of the laws of two thousand ten.  (N.Y. State Law § 123.)
>
>
>
> That leaves, most intriguingly, *Nebraska*.  Article III, section 5 of
> the Nebraska Constitution provides:
>
>
>
> The Legislature shall by law determine the number of members to be elected
> and divide the state into legislative districts.  In the creation of such
> districts, any county that contains population sufficient to entitle it to
> two or more members of the Legislature shall be divided into separate and
> distinct legislative districts, as nearly equal in population as may be and
> composed of contiguous and compact territory.  One member of the
> Legislature shall be elected from each such district.  The basis of
> apportionment shall be the population *excluding aliens*, as shown by the
> next preceding federal census.
>
>
>
> A 1934 reported decision -- *Rogers v. Morgan*, 256 U.S. 1, 2 (Neb. 1934)
> -- suggests that Nebraska did, indeed, exclude aliens from its districting
> numbers after the 1930 census.  But I have no idea what the Nebraska
> practice has been post-*Reynolds/Burns*, nor how (if at all) Nebraska
> counts "aliens."
>
>
>
> Anyone have further information about Nebraska?
>
>
>
> Is Texas's account of state law otherwise accurate?
>
>
>
>
>
> On Tue, Aug 4, 2015 at 12:55 PM, Marty Lederman <lederman.marty at gmail.com>
> wrote:
>
> I apologize if the answer to this is somewhere in the pleadings, but I
> haven't run across it and was hoping some of you would know:
>
>
>
> How many, if any, states currently use anything *other than* total
> population (census #s) to draw roughly equal districts for election to
> state office?  To draw congressional districts?  Has the practice changed
> at all over the past half-century, since *Wesberry*/*Reynolds*/*Burns*?
>
>
>
> Thanks in advance.
>
>
>
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